(concurring in part; dissenting in part)—At the outset I would affirm both convictions, using the rationale of State v. Briceno, 33 Wn. App. 101, 651 P.2d 1093 (1982). Because the majority affirms the burglary conviction and Goodman received concurrent sentences, we *343need not address his possession of stolen property conviction.
I agree with the majority that State v. Ringer, 100 Wn.2d 686, 674 P.2d 1240 (1983) is not retroactive4 and that the totality of the circumstances gave police probable cause, both to arrest Goodman and to believe the suitcase contained evidence of a crime. I do not agree, however, with its holding that the search of the suitcase violated Goodman's constitutional rights.
The majority attempts to distinguish this case from United States v. Ross, 456 U.S. 798, 72 L. Ed. 2d 572, 102 S. Ct. 2157 (1982) on the ground that the officers' suspicion focused on a particular closed container, as was the situation in Arkansas v. Sanders, 442 U.S. 753, 61 L. Ed. 2d 235, 99 S. Ct. 2586 (1979) and United States v. Chadwick, 433 U.S. 1, 53 L. Ed. 2d 538, 97 S. Ct. 2476 (1977). However the United States Supreme Court in Ross held that a container may be searched without a warrant if there is probable cause to search the automobile in which it rides rather than just to search the container itself. Ross, 456 U.S. at 823-24; United States v. Johns,_U.S._, 83 L. Ed. 2d 890, 895-96, 105 S. Ct. 881 (1985). Hence, this court in the past has recognized that "probable cause to believe defendant's car carried [a container holding evidence of a crime] in no way changes our analysis" of whether probable cause also existed to search that container. State v. Southard, 32 Wn. App. 599, 605 n.4, 648 P.2d 504 (1982). Contrary to the view of the majority, the outcome of the instant case is controlled by Ross, not Sanders and Chadwick, because probable cause existed to search defendant's car as well as his suitcase.
Detective Jackson knew that for some time Goodman had been operating his car in a suspicious manner out of *344the policeman's view. By the time the officer saw the suitcase being loaded into the car's trunk and heard defendant's evasive answers, he had good reason to suspect that the car was an instrumentality of Goodman's criminal activities and that a search of the car itself would disclose additional evidence. That of course proved to be true when the officers discovered the purse and credit cards in the passenger portion of the vehicle.
The officers' suspicion did not focus solely on a container as in Sanders and Chadwick, for it was not obvious that all the evidence would be in the suitcase rather than secreted elsewhere in the vehicle. See United States v. Shepherd, 714 F.2d 316, 323 (4th Cir. 1983), cert. denied, 466 U.S. 938 (1984); United States v. Johns, 707 F.2d 1093, 1097 (9th Cir. 1983), rev'd on other grounds, 87 L. Ed. 2d 890 (1985) .5 Although the majority states that Goodman's suspicious use of his vehicle contributed to its finding of probable cause to arrest him, it ignores the role of defendant's car when analyzing whether there was probable cause to believe the vehicle contained evidence of Goodman's crimes. Indeed it was defendant's behavior while driving the vehicle that aroused suspicion initially; and the loading of the suitcase was but one factor among many in the totality of circumstances surrounding Goodman's observed activities.
Further, there is no suggestion here, as there was in Sanders, that the officers awaited placement of the suitcase in the car in order to vault themselves into a "Carroll" search situation. Their first glimpse of the case came almost simultaneously with its being placed in the trunk. There was no meaningful opportunity to seize it before this became a fait accompli.
Here, there was probable cause to search the car, and therefore the suitcase secreted within it, because the total*345ity of the circumstances within the knowledge of the officer supported a reasonable belief that the vehicle contained evidence of a crime. See Carroll v. United States, 267 U.S. 132, 149, 69 L. Ed. 543, 45 S. Ct. 280, 39 A.L.R. 790 (1925); State v. Donohoe, 39 Wn. App. 778, 780, 695 P.2d 150, review denied, 103 Wn.2d 1032 (1985).
I would affirm both convictions.
Review denied by Supreme Court February 21, 1986.
Should our position with respect to Ringer's retroactivity be held incorrect, this should dictate only a remand to determine whether it was feasible for the officers to get a telephonic warrant. That issue was not raised in the trial court— neither was it in Ringer when that case was in this court.
Although the Supreme Court in Johns reversed the Ninth Circuit on other grounds, it expressly approved of that court's analysis regarding the application of Ross. United States v. Johns, 87 L. Ed. 2d at 895.